17 Kan. 492 | Kan. | 1877
The opinion of the court was delivered by
This action was brought by Cobb, Stribling & Co., as assignees of G. F. Bernstein, against the In
The first paragraph or clause above quoted from the policy is in writing, and the second is printed. Therefore, if there were any real and irreconcilable conflict between the two paragraphs, the first would, according to well-known rules of construction, be of controlling force in determining what the real intentions of the parties were. But we should not construe said paragraphs or clauses so as to make them conflict with each other, if such a construction can be avoided. On the contrary, we should construe them so as to make them harmonize, if such a construction is possible; and should construe them so as to give to each and, all their terms full force and operation. And in construing them we
After a careful consideration of the case, we have come to the conclusion that the printed clause in the policy in this case is not in conflict with any written clause therein. Or at most, there is no such conflict between any of the clauses of said policy as will render said printed clause void. The conflict, if any, is only to the extent that one clause modifies the other. Therefore, as gunpowder was not insured, except upon a condition precedent, which has never been fulfilled, and as it was absolutely prohibited from being kept upon the premises except upon a condition subsequent which has never been fulfilled, and as the assured did keep gunpowder on the premises in -violation of the express terms of his insurance policy, we think the policy was rendered void in accordance with its own express terms. ■ We have examined many authorities supposed to apply more or less nearly or remotely to this case, among which are the following, cited by the plaintiffs in error: Phœnix Ins. Co. v. Taylor, 5 Minn. 493; Whitmark v. Conway Fire Ins. Co., 16 Gray, 359; Niagara Fire Ins. Co. v. DeGraff, 12 Mich. 124; Harper v. Albany Mut. Ins. Co., 17 N. Y. 194; Bryant v. Poughkeepsie Mut. Ins. Co., 17 N. Y. 200; Harper v. N. Y. City Ins. Co. 23 N. Y. 441; Pindar v. Kings Co. Ins. Co., 36 N. Y. 648; Steinbach v. Lafayette Fire Ins. Co., 54 N. Y. 90; Hall v. Ins. Co. of N. A., 58 N. Y. 292; Archer v. Ins. Co., 43 Mo. 434; Wash. Ins. Co. v. Mer. & Man. Ins. Co., 5 Ohio St. 450; Franklin
The judgment of the court below will be affirmed.